Murder has long been different from other crimes in that it has no statute of limitations and can be charged even when death occurs long after the criminal act. Another long-standing principle in the law is that the constitutional provision against double jeopardy means that a person can't be tried twice for the same action. What happens when these two principles collide?

A Bronx County judge ruled that double jeopardy did not apply to a murder charge against a defendant who had already spent 11 years in prison for attempted murder for the same shooting. The man he was originally convicted of shooting survived, but the bullet remained in his spine. 19 years after the defendant was released from prison, the man he was convicted of shooting suffered an infection due to the bullet and died.

His defense attorney challenged the indictment on multiple grounds including double jeopardy. While double jeopardy generally bars charges where the elements of the new or original charge contain every element of the other, the court denied the defense attorney's motion to dismiss the indictment on the grounds that murder is excluded from the double jeopardy rule when the prosecution did not or could not have known of the death of the victim at the time of the first prosecution.

The defense attorney also argued that when his client pled guilty to attempted murder, it was based on an agreement that no future prosecution for murder would be brought if the man who was shot eventually died. The judge reviewed the court minutes but found nothing in the transcript indicating that there was any such deal.

This case highlights the importance of ensuring that a plea bargain in any case thoroughly covers any possibility. While a death occurring decades after a shooting is an extreme example, there is always the possibility of medical complications arising after a violent crime.

Although the exclusion from the double jeopardy rule applies only to murder cases, caution should also be taken in other cases. A prosecutor might bring a future charge, arguing that newly discovered victims, damages, or acts were part of a separate course of conduct from the original charge and not subject to the double jeopardy rule. Even if a judge later disagrees, there is still a risk of arrest and having to defend the new charges. To eliminate the risk of future prosecution, the plea bargain should explicitly state, in writing or on the record in open court, that it covers all acts and results arising from the same course of conduct.

Nicco is the firm's owner and sole attorney. He practices law in the fields of state and federal criminal defense, asset forfeiture, appeals, litigation, and other areas. He is also a published author and an educated historian. He has two advanced degrees and is recognized as an expert in the field.